Three Men Who Let A Murderer Get Away

Disclaimer: These posts are meant to be interactive. You can read and surf away if you want. Or you can participate. Read carefully about what is said or is claimed to be known. And then weigh in. Your words could have the power to solve these mysteries that continue to torment the families and friends of the victims.

Thomas Pustay aka Inmate 129388

When Nikki LaDue January was murdered in 2002 the three men who could have put her killer away plain and simply didn’t do their job. Pathetically incompetent is probably a better way to put it. Her story is coming up but for now meet chief investigator Thomas Pustay. He was charged with investigating her death and quickly wrote it off to suicide. As you will see for yourself, not only was he wrong, he didn’t care. If you’d like to write him and ask him why, you can write him at the South Mississippi Correctional Institution (Inmate # 129388) where he will be spending the rest of his life. Yes that’s right. While he was supposedly investigating Nikki’s death, he was sexually assaulting a family friend and had been doing so since she was 9.

Former Sheriff George Payne

Then there’s Harrison County Sheriff George Payne whose jurisdiction included Pass Christian where Nikki died. As of 2007 under his watch, his department was sued for more than half a billion dollars for claims including the wrongful death suit of Jesse Lee Williams Jr. who was beaten to death by Payne’s prison guards in 2006. He was finally forced out of office in 2008 and was immediately chased down by the state auditors after his successor found $21,000 of missing department equipment including guns, TVs, night vision goggles and a car. His incompetence was highlighted in a CNN story in 2007 following the suspicious deaths and serious injuries to a number of county jail inmates. Also spotlighted in that report is the third person who botched Nikki’s investigation.

Medical Examiner Gary Hargrove

The medical examiner’s job is to determine cause of death in violent and/or unexplained deaths. It was Harrison County Medical Examiner Gary Hargrove who ignored the evidence and determined, without an autopsy, that Nikki committed suicide. It’s not the first time his alleged incompetence has been questioned. Lee Demond Smith was another prisoner murdered in Sheriff Payne’s jail. Hargrove along with a forensic pathologist determined Smith died of a pulmonary embolism–a blog clot in the lung. Not trusting the authorities, Smith’s family spent $9000 for a private autopsy. And that forensic pathologist made a shocking discovery. He found the true cause of death was strangulation and Smith was being restrained while being strangled. Shocking but not the most shocking discovery. Hargrove claimed a blood clot in the lung killed Smith. To determine that, the lung would have had to have been dissected. The second autopsy found that the lung was never dissected. So how could Hargrove come up with his cause of death. When CNN asked him if he was involved in a coverup, he replied, “No, we’re not. I have not ever covered up a death and will not do it today or any other time. Because when it comes to that, it’s time to get out of the business.” Strange thing to say but maybe he’s right…it is time for him to get out of the business.

Do you recall the bullet recovered after ricochetting around? Why wasn’t it analyzed. First, very straight forward tests exist that will indicate if it was FMJ vs un-jacketed lead (simply have to analyze for traces of non-lead alloy — like copper, aluminum, etc). Second, the recovered bullet needs to be weighed. The weight of the bullet doesn’t conclusively indicate that it was 380 Auto, but the weight of the bullet can conclusively indicate that it was NOT 380 Auto. If you can demonstrate the latter, then the murder weapon shown in the crime scene photos is a hoax. Here’s what I’m getting at . . .

Bullet weight is expressed in grains (a consequence of us silly Americans not adopting the metric system). The grain weight of the various bullets in question is provided below:

If I weighed the recovered bullet, and it’s weight came in over 115 grains . . . obviously it’s NOT a 380 Auto. In my mind, that’s all I’d need to prove to re-open this case. Now, there is a possibility that even if the bullet was not a 380 Auto (say it was a larger caliber heavier bullet), that the recovered fragment would weigh equal or less than 115 grains. Parts of the bullet may have fragmented off during flight or from repeated impacts (stucco, door frame, etc), reducing it’s weight. However, if fragmentation did not occur, this analytical step could be the slam dunk needed to demonstrate a murder and/or cover-up.

If the bullet was recovered and is now missing along with all the other evidence — then we need to pose a very direct question to the Mississippi authorities — when witness testimony surfaced to suggest a 9 mm casing might have been found, why wasn’t the recovered bullet weighed to disprove this theory?! Again, this would be pretty standard protocol for a competent police department . . .

On to the casing found in pool-

It’s a very odd comment by the apartment manager who found the spent shell casing in the day of the murder. He said that the spent casing he found was from a 9 mm instead of a 380 Auto, and based this observation on the length of the shell casing as I remember (which would be a correct observation, as a 9 mm shell casing would be longer than a 380 Auto — with the diameter of each being essentially the same). Why does this statement strike me as odd . . . instead of impressing upon me that this guy was pretty smart to recognize this? Well, it’s becasue all commercial rounds of handgun ammo that I have ever purchased from the store clearly state the caliber of the bullet on the head stamp of the casing. For example, if I bought some Winchester 380 Auto ammo, on the bottom of the casing would be clearly stamped the following information — “WIN 380 AUTO.” So while the apartment manager’s seemingly intelligent commentary might impress the uninformed, it indicated to me that he was either rather un-intelligent or illiterate. If I picked up a spent handgun casing, I would NOT need to guess the bullet caliber based on presumptions of casing length — I’d simply read what the caliber was from the casing head stamp, and provide the police with a known fact.

Another odd revelation that bugs me . . . where is the murder weapon?! Even if others are not-talking, I would argue that Phil knows. The gun was Phil’s private property. If a crime was not committed, I would suggest that the private property protections of the 4th and 5th amendments to the US Constitution would compel the police department to contact Phil and provide him with the opportunity to reclaim his gun. If Phil was so distraught over his wife’s tragic death, he could have always responded (as many do) by requesting that the police department destroy the gun to relieve him of the unbearable memory it’s presence would evoke. Regardless, Phil would still conclusively know the whereabouts of the gun — “it was returned to my possession or it was destroyed by the police department.” However, I have read forum posts by police officers on this subject who state that the argument above isn’t necessarily valid. From their vantage, if death is ruled a suicide — technically, a crime has been committed, as suicide is against the law. Under such circumstances, the police department would not be violating the 4th and 5th amendment by retaining the property or disposing of it as it pleased. However, even in this instance, the forum contributors seemed to suggest that normal police protocol is STILL to contact the handgun owner (or next of kin) to provide an opportunity to retrieve their property. Was this just another instance of the Mississippi police being sloppy? If the police retained the gun there should be a written record somewhere demonstrating this fact. Otherwise, it seems most plausible they would have contacted Jim to retrieve his private property. I don’t see any other alternatives here. Why hasn’t Phil been questioned more fervently on the whereabouts of his gun? Did he knowingly destroy this evidence too after erasing his hard drive? And what about erasing the hard drive? Simply deleting the files doesn’t erase the information from the hard drive (it just wipes the file directory . . . any computer sleuth could use software to recover lost data after this action). For Phil to truly erase the hard drive, he would have had to use a software program that re-writes data onto each sector of the hard drive multiple time to ensure it was gone for good (i.e. this is what government agencies do to wipe their drives clean). Did investigators simply take Phil’s word that the hard drive was erased . . . or, did they perform recovery attempts (the software capable of recovering files was available in 2002).

The Magic Bullet Revisited –
Un-jacketed lead bullets and metal jacketed bullets are typical of the cheap ammo you would purchase for practice sessions at the gun range. I have a North American Arms Guardian 380 ACP that I use for concealed carry. I shoot full metal jacketed bullets (FMJ) at the range, to minimize the amount of cleaning that I have to do after a firing session. FMJ bullets usually consist of a “soft” lead core encased by a harder metal such as a copper alloy, aluminum, or steel — which causes less fouling of the barrel. For self defense, I load the 380 ACP with jacketed hollow points (JHP). A jacketed hollow point is designed to expand on impact to increase the effective diameter of the bullet (i.e. “mushrooms”) when entering the body — thereby increasing the wound channel (permanent cavity) diameter. Bullet expansion in a JHP also increases resistance and slows the bullet down due to frictional losses. In a perfect world, a bullet would enter the human body, mushroom to create a large diameter wound channel, have adequate penetration to hit a vital organ (which may be buried deep below muscle and fat), and then stop before exiting the body (so there is no collateral damage to innocent bystanders and the bullet transfers all it’s kinetic energy into the intended target). This is the holy grail of self-defense ammunition suppliers, and a hotly contested topic of internet gun forums (everyone seems to have their own opinion on the topic). In the realm of self defense, the most important parameter cited to stop an attacker is bullet placement — more so than any other variable like penetration, etc. An FBI report I reviewed some years ago stated that even if the heart is ruptured from a bullet with adequate penetration, the brain continues to function for 10-15 seconds before being starved of oxygen, forcing an assailant to collapse to the floor (before which he could return fire or stab you). In Nikki’s murder, placement was perfect if the intention was to effect immediate death. The head (or more precisely “brain”) is the one reliable target where an assailant is incapacitated immediately (particularly at point blank range). Whether an un-jacketed or FMJ bullet was selected is immaterial — the effect would be the same — immediate death – if the murderer was planning to shoot the victim in the head. For example, if I’m to believe what I read, the classic mafia assassination involves the use of a .22 caliber round to the head — a round far less lethal than a 380.

Phil’s response that the gun was loaded with un-jacketed lead bullets is a bit perplexing, though, if he left the 380 Auto with Nikki for her defense. As a braggart that relished his past police credentials (credible or not) I would have thought he’d been cognizant of the above, and loaded the gun with JHPs to protect his one and only wife. Since Nikki was not a proficient gun handler, her capacity to hit the head of a moving assailant would be rather slim (pure luck). Given this, her chances of stopping an assailant (where the bullet might penetrate any part of the assailant’s body) with the fewest number of rounds fired would be improved using JHP. So why would Phil state that un-jacketed lead bullets were used? One possibility — he’s telling the truth. Another more sinister possibility — he’s trying to mislead police into thinking that the gun was just loaded with “docile” practice rounds (i.e. intended purpose was simply to practice marksmanship vs. wanting to kill somebody). It’s the same reason an assailant might choose a revolver in a murder vs. a para-military assault rifle. Although both are legal to possess as a citizen in the United States, the para-military assault rifle doesn’t stand up well in a jury trial. Although either can deliver a lethal blow, the latter looks “evil” or “bad” and illicits a negative emotional response from the average juror. In other words, if Phil’s story was going to be retold to a jury against him, he’d want the tale to sound as non-threatening as possible. Just a theory . . . from the conspiracist within me . . . but, it would be easier to explain away the choice of a “recreational load” that I used for pure enjoyment while target practicing, then the JHP I loaded the gun with for the purpose of incapacitating another human being. However, this is all conjecture and would never be admissible in court. The only person that knows what Phil was thinking is Phil, and he’s been conveniently silent.

Although I made an argument above that the average Joe would load JHPs for self defense with a 380 Auto (at least I would), a thoughtful individual might rationalize another ammo type based solely on penetration ability. For example, they might cite the FBI criteria, that a selected round should be able to penetrate at least 12 inches deep into the human body. This criteria covers all potential shooting angles, where hitting a vital organ such as the heart is deemed necessary. For example, they might reason (as the FBI does) that if they shot an assailant in his side, the bullet would have to travel about 12 inches to pierce the heart. With respect to penetration, the FMJ, typically purchased as “round nose” or “ball” ammo, would have improved penetrating ability over the JHP. Likewise, the RNL (round nose lead) would have improved penetration ability. Expansion of the un-jacketed RNL might be greater (resulting in less penetration of the RNL relative to the FMJ), but the difference would be minimal in my mind. Regardless, on most gun forums, you’ll normally find the RNL or FMJ discredited as choices for self-defense round in 380 Auto. The typical advice in this caliber is to go with JHP.

When I read the report that the medical examiner had a hard time finding the exit wound, the first thought that came to my mind was “FMJ.” The FMJ is known for excellent penetration, and the “pointed” round nose (typical of this ammo type) is good at piercing. Although the entrance wound was not described, I’d surmise that at point blank range, it would have appeared far worse than the exit wound (due in part to the scalding hot gases exiting the muzzle which are also quite capable of causing tissue damage). The exit wound would be a function of whether the bullet tumbled in flight, and the size of the skull fragments the bullet dislodged and carried forward. If an FMJ doesn’t tumble after entry (remains straight in flight), and continues to pierce along it’s path (including the skull at both entry and exit), one might expect the exit wound to be very small and difficult to locate — particularly as skin (unlike brain tissue) is very elastic and wants to return to shape. However, I’m not smart enough to say that the same exit wound wouldn’t have been caused by an RNL bullet. Some time back I read an interesting posting on wound ballistics from an ex-police officer that had become a medical examiner. Based on his experience of performing over a thousand autopsies involving gun violence, he made some interesting observations with respect to gun caliber and wound appearance — however, I can’t remember if he discussed specific cases involving head trauma involving smaller caliber RNLs.

There are some simple answers (which may or may not be true) to the discrepencies.
The apt manager may have been explaining the difference between 9mm and 380 to a reporter who didn’t know the difference and they simply mis-quoted his remarks.
As for the bullets, the husband may have simply went to a “big box” sporting goods store and bought whatever was on sale, perhaps he liked cleaning the gun. Some people still prefer lead.
The shell casing in the pool may have nothing to do with the death.
There may not have been much left of he bullet after it’s travels.
I read that the gun was given to the husband. Perhaps the police never took it into their posession.